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Judgment
U.S. Tripathi, J.—The sole Petitioner Abdul Rahim died on 10.3.1999. The alleged legal representatives of Petitioner, namely, Abdul Rashid, Mohd. Rafiq, Mohd. Rais and Smt. Isharat Bano, sons and daughter of Abdul Rashid moved substitution application for their substitution in place of the Petitioner.
The respondent Nos. 2 and 3 filed objection on the ground that none of the heirs and legal representatives mentioned in the application were living with the deceased Abdul Rahim at the time of his death. Abdul Rashid, Mohd. Rafiq, Mohd. Rais, sons of Abdul Raheem are residents of Bikrauli in the State of Maharashtra and Smt. Ishrat Bano daughter of Abdul Raheem was married long back and is living with her husband Mohd. Musir in premises No. 101/121 Colonelganj, Kanpur Nagar. Therefore, the interest of deceased Abdul Raheem did not survive or devolve on any of the aforesaid heirs and legal representatives.
In his rejoinder-affidavit, Mohd, Rais one of the heirs of Petitioner deposed that all the heirs of deceased were residing normally with the Petitioner. Abdul Raheem in House No. 100/87, Colonelganj, Kanpur, the disputed accommodation on the date of his death. So far as Mohd. Rafiq and Mohd. Rais were concerned, they are presently residing at Bombay, but whenever, they came to Kanpur, they resided in the house in dispute. Abdul Rashid and Smt. Ishrat Bano were residing in the house in dispute in Kanpur and they had never left house in dispute. It was further deposed that Smt. Ishrat Bano was not residing in house No. 101/121 Colonelganj, Kanpur.
Heard the learned Counsel for the parties and perused the record.
"Tenant" as defined in Section 3(a) of U.P. Act No. 13 of 1972, (hereinafter called the Act), in relation to a building means a person by whom its rent is payable and on the tenant''s death-(l). In case of residential building such only of his heirs as normally resided with him in the building at the time of his death; (2) In case of non-residential building, his heirs.
Admittedly the premises in question was residential, therefore, only those heirs of the deceased tenants, who were normally residing with him in the building at the time of his death may claim to be substituted.
It is not disputed that deceased had left three sons and one daughter. The contention of the respondent Nos. 2 and 3 was that none of the sons and daughter were normally residing with the deceased at the time of his death. In the rejoinder-affidavit, it is admitted that Mohd. Rafiq and Mohd. Rais, two sons of deceased, are residing in Bombay, but whenever they came to Kanpur, they resided in house in dispute. Thus, it is admitted that Mohd. Rafiq and Mohd. Rais were not normally residing in the premises in question along with the deceased and, therefore, the tenancy did not devolve on them as casual residence is not relevant.
Regarding Smt. Ishrat Bano. it was contended by respondent Nos. 2 and 3 that she was married and residing with her husband. However, in rejoinder-affidavit, it was contended that she was residing with the deceased in the premises in question. Normally a married daughter resides with her husband or in-laws. Nothing has been shown as to why she was residing with her father. In the absence of any special circumstances, she shall be deemed to be residing with her husband and in-laws and, therefore, tenancy also did not devolve on her.
Though, it is contended that Abdul Rashid, the third son of the deceased was normally residing with him, but there is specific assertion of respondent Nos. 2 and 3 that Abdul Rashid was also residing at Bombay. No document or other reliable evidence had been shown to prove the normal residence of Abdul Rais with the deceased in the premises in question.
In this way, the alleged heirs could not prove their normal residence with the deceased in premises in question at the time of death of tenant and, therefore, tenancy did not devolve on them.
Substitution application, therefore, has no force and is, accordingly, rejected.